In his latest blog post on the Huffington Post, Prof. Bennett Gershman turned his attention to the Occupy Wall Street protests at Zuccotti Park in lower Manhattan. He writes:

Mayor Michael Bloomberg apparently has had enough of “Tent City,” the encampment in a lower Manhattan park by Occupy Wall Street protesters to dramatize the economic disparities between the rich and poor. Despite support of the protest by a large portion of New Yorkers, the mayor believes that sleeping in tents in a public park is not within the free speech protections of the First Amendment. But as the Supreme Court has emphasized in several controversial cases, the protection of the First Amendment is not limited to speech and assembly, as the mayor contends, but also encompasses certain conduct that is intended to convey a message. And nobody, not even the Mayor, could claim that “Tent City” does not convey a vivid and powerful message — the poor and homeless sleep in tents and cardboard shelters, while the wealthy sleep in mansions and triplexes.

Gershman argues that one must balance the protestors’ rights to free speech and assembly with the public’s rights to peace and quiet, but writes, “the balance typically tilts towards free speech unless the government can demonstrate a substantial interest in curtailing the conduct, and also showing that the curtailment is not because of any disagreement with the content of the conduct-speech, but for some other legitimate governmental interest.”